We are a nation of immigrants. We always have been. And I hope we always will be.
But in order to preserve our nation’s immigrant heritage, we must first make sure that our current immigration laws are not being manipulated and abused.
Unfortunately, that is exactly what has been happening for over five years now, and the resulting crisis has inflicted high humanitarian costs on both Americans and migrants.
Just a few months ago, however, many in Washington and the national media denied that anything was amiss at our nation’s border. CNN’s Don Lemon and DNC Chairman Tom Perez both called it a “manufactured crisis” while Sen. Elizabeth Warren insisted all the suffering was “fake.”
But there was nothing fake about the human pain I saw last week at the border in Texas. I talked to one Guatemalan couple in their late 20s who had travelled more than 1,000 miles through Mexico with their two children. I saw an overflowing facility of single adult males with no room to sleep and no privacy to use the bathroom. And I talked to a ten-year old girl who said she had spent the last two months walking with her family from Ecuador.
None of the journeys these families made were cheap, safe, or easy. Smugglers charge up to $10,000 to guide migrants from Central America to the United States. Even at that price, migrants are subject to robbery, assault, and even rape along the way.
And yet tens of thousands of families are making this journey every month. Why?
It didn’t always used to be this way.
Before 2011, migrant family apprehensions at the border were so rare that the Department of Homeland Security didn’t even have a separate category for it. But then in 2011, Mexico significantly cut back on their own border security enforcement, starting with a decriminalization of illegal entry and disarming immigration law enforcement officers.
A trickle of family migrants turned into a steady stream after President Obama announced through his Deferred Action for Childhood Arrivals (DACA) program that the United States would no longer deport migrant children who managed to evade deportation for at least five years. The month before DACA fewer than 1,000 families were apprehended at the southern border every month. By the summer of 2014, that level reached 15,000.
It got so bad that in June 2014 President Obama sent Vice President Biden to Guatemala to tell families that DACA did not apply to new arrivals. “Do not send your children to the borders,” President Obama told ABC News. “If they do make it, they'll get sent back. More importantly, they may not make it.”
But smugglers told Central American families a different story. They said America’s border law enforcement agencies were overwhelmed. And that the Border Patrol would be forced to release families caught at the border into the United States. And that once these families were released into the United States, the chances that authorities would ever track them down, and have the political will to deport them, would be very small.
And the smugglers have been proven right. As a result, the number of migrant families coming to the border has skyrocketed.
As mentioned earlier, before President Obama announced DACA, fewer than 1,000 migrants traveling as a family were apprehended at the border. This past month, that number was more than 55,000.
The root cause of this migrant surge is economic. According to the Institute for Defense Analysis, people migrating illegally from Guatemala and Honduras can make about 13 to 14 times more in the United States than what they make in their home countries.
But this has been true for decades. And yet the migrant crisis only recently started. Why?
The proximate cause of today’s migrant crisis is the unfortunately correct belief among Central American migrants that if they come to the United States with children, they will be quickly released into our country, and they will most likely be allowed to stay forever.
The American people never consciously passed a law enabling migrants traveling with children to freely enter the United States at will, but thanks to a well-meaning anti-human trafficking law and an activist 9th Circuit judge, that is exactly the policy outcome our government is currently delivering.
For most of American history, all migrants illegally crossing the southern border were simply returned to Mexico. End of story.
But under the Trafficking Victims Reauthorization Act of 2008 (TVPRA), Border Patrol agents must treat migrants from non-contiguous countries (i.e. countries other than Mexico) differently than migrants from Mexico. Unaccompanied minor migrants must be taken into custody and transferred to the Department of Health and Human Services’ Office of Refugee Resettlement within 72 hours of being taken into custody, while families apprehended by the Border Patrol must be transferred to Immigrations and Customs Enforcement within 72 hours.
Ideally, these migrants’ immigration status could be adjudicated while they are still in government custody so they could then be sent to their proper destination after adjudication. Unfortunately, in 2015, a 9th Circuit court ruling, Flores-Figueroa v. United States, held that the government cannot detain any child for longer than 20 days.
As a result of the trafficking law and this Flores decision, families apprehended at the southern border are typically released into the United States mere days after being taken into custody. And virtually all of them are then permitted to stay in the United States indefinitely. According to the Department of Homeland Security, just 1.4 percent of family members detained from Central American countries in 2017 have been returned to their home countries.
This “catch and release” policy, a policy well-known to smugglers and sold to migrant families across Central America, is the driving force behind the humanitarian crisis at our southern border. Until we stop releasing migrant families apprehended at the southern border into the United States, this crisis will only get worse.
We can end this crisis but it will not be easy. We need more beds. We need more funding. We need to change our asylum laws, we need to reform the TVPRA, and we need to fix the Flores loophole.
If we do these things we can solve this crisis, just as we have solved other great problems in our society. But to do that we need a clear understanding of how this crisis began and why it is getting worse in the first place.